The Judiciary

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					The Judiciary
Wilson Chapter 14
 Klein Oak High School
               Introduction 1
• Only in the United States do judges play
  so large a role in policy-making.
  – Judicial review: the right of the federal courts
    to rule on the constitutionality of laws and
    executive acts
     • Chief judicial weapon in the checks and balances
  – Few other countries have such a power.
     • In Britain, parliament is the supreme law maker.
     • Judicial review, with some notable exceptions, is
       not determinative in other countries.
                Introduction 2
• Debate is over how the Constitution
  should be interpreted.
     • Strict constructionism: judges are bound by
       wording of Constitution
     • Activist: judges should look to underlying principles
       of Constitution
     • Not a matter of liberal versus conservative
        – A judge can be both conservative and activist, or liberal
          and strict constructionist.
        – Today: most activists tend to be liberal, most strict
          constructionists tend to be conservative.
Development of the Federal Courts
• Founders view
• National supremacy and slavery: 1789 –
• Government and the economy: 1865 –
• Government and political liberty: 1936 to
  the present
• The revival of state sovereignty
               Founders’ View
• Most Founders probably expected judicial review but did
  not expect federal court to play such a large role in
• Traditional view: judges find and apply existing law
• Activist judges would later respond that judges make
• Traditional view made it easy for Founders to predict
  courts would be neutral and passive in public affairs.
• Hamilton: courts are the least dangerous branch; their
  authority only limits the legislature
• But federal judiciary evolved toward judicial activism,
  shaped by political. economic, ideological forces of three
  historical eras.
 National Supremacy and Slavery:
• Marbury v. Madison (1803) and McCulloch v. Maryland
   – Supreme Court could declare a congressional act
   – Power granted to federal government should be construed
   – Federal law is supreme over state law.
• Interstate commerce clause is placed under the authority
  of federal law; state law conflicting with federal law was
  declared void.
• Dred Scott v. Sandford (1857): Blacks were not, and
  could not become, free citizens of the U.S.; federal law
  (Missouri Compromise) prohibiting slavery in northern
  territories was unconstitutional
   Government and the Economy:
         1865 to 1936 - 1
• Dominant issue of the period: under what
  circumstances could the economy be regulated
  by the state governments? by the federal
• Private property held to be protected by the
  Fourteenth Amendment.
• Judicial activism—Supreme Court assessing the
  constitutionality of governmental regulation of
  business or labor
Government and the Economy: 1865 to
             1936 - 2
• Supreme Court was supportive of private
  property, and could not develop a principle
  distinguishing between reasonable and
  unreasonable regulation.
• The Court interpreted the Fourteenth and
  Fifteenth amendments narrowly as applied to
  – upheld segregation (Plessy v. Ferguson, 1896)
  – excluded blacks from voting in many states.
 Government and Political Liberty:
       1936 to the present
• Court establishes tradition of deferring to
  the legislature in economic regulation
• Court shifts attention to personal liberties
  and is active in defining rights.
• Court-packing plan (FDR)
• Warren Court provided a liberal protection
  of rights and liberties against government
  Revival of State Sovereignty
• Beginning in 1992, the Supreme Court
  began to rule that the states have the right
  to resist some federal action.
  Structure of the Federal Courts
• Supreme Court (created by Constitution)
• Constitutional Courts (created by
• Legislative Courts (created by Congress)
• Two kinds of federal courts were created
  by Congress to handle cases that the
  Supreme Court does not need to decide.
          Constitutional Courts
•   Exercise judicial powers found in Article III
•   Judges serve during good behavior
•   Salaries not reduced while in office
•   Examples:
    – District Courts (94)
    – Courts of Appeals (12)
         Legislative Courts
• Created by Congress for specialized
• Judges have fixed terms.
• Judges can be removed.
• No salary protection
• Example: Court of Military Appeals
          Selecting Judges 1
• All constitutional court judges are nominated by
  president and confirmed by the Senate
• Party background has some effect on judicial
  behavior, but rulings are also shaped by other
  factors such as the facts of the case, precedent,
  lawyers’ arguments.
• Senatorial courtesy: appointees for federal
  courts are reviewed by senators for that state, if
  the senators are of the president’s party
  (particularly for U.S. district courts)
         Selecting Judges 2
• The litmus test
  – Presidents seek judicial appointees who
    share their political ideologies.
  – Has caused different circuits to come to
    different rulings about similar cases
  – Raises concerns that ideological tests are too
    dominant, and has caused delays in securing
    Senate confirmations
  – Greatest impact on Supreme Court—no
    tradition of senatorial courtesy
 Jurisdiction of the Federal Courts
• Dual court system
• Route to the Supreme Court
          Dual Court System 1
• One state, one federal
• Federal cases listed in Article III and Eleventh
  Amendment of Constitution
• Federal question cases: involving
   – U.S. Constitution
   – federal law
   – Treaties
• Diversity cases: involving
   – different states, or
   – citizens of different states
        Dual Court System 2
• Some cases can be tried in either federal
  or state court.
  – Example: if both federal and state laws have
    been broken (dual sovereignty)
  – Jurisdiction: each government has right to
    enact laws and neither can block prosecution
    out of sympathy for the accused
• State cases sometimes can be appealed
  to Supreme Court.
    Route to the Supreme Court
• Most federal cases begin in district courts.
   – Most are straightforward, do not lead to new public policy.
• Supreme Court picks the cases it wants to hear on
   – Requires agreement of four justices to hear case - to issue a writ
     of certiorari
   – Usually deals with..
       • Significant federal or constitutional question
       • Conflicting decisions by circuit courts
       • Constitutional interpretation by one of the highest state courts,
         about state or federal law
   – Only about 100 appeals are granted certiorari
   – Limited number of cases heard results in diversity of
     constitutional interpretation among appeals courts
   Getting to Court (overview)
• Deterrents to the courts acting as
  democratic institutions
• Fee shifting
• Standing: who is entitled to bring a case
• Class action suits
   Deterrents to Courts Acting as
      Democratic Institutions
• Supreme Court rejects all but a few of the
  applications for certiorari.
• Costs of appeal are high
  – But these can sometimes be lowered...
     • In forma pauperis: plaintiff indigent, with costs paid
       by government
     • Indigent defendant in a criminal trial: legal counsel
       provided by government at no charge
        – Gideon v. Wainwright (1963)
     • Payment by interest groups (e.g.. American Civil
       Liberties Union)
               Fee Shifting
• Usually, each party must pay their own
  legal expenses.
• However, the losing defendant pays the
  plaintiff’s expenses (fee shifting) in certain
Standing: Who is Entitled to Bring a
• There must be a real controversy between
• Personal harm must be demonstrated.
• Being a taxpayer does not ordinarily constitute
  entitlement to challenge federal government
  action; this requirement is relaxed when the First
  Amendment is involved.
• Sovereign immunity: government must consent
  to being sued
         Class Action Suits
• Brought on behalf of all similarly situated
• Number of class action suits increased
  because there were financial incentives to
  bring suit and because Congress was not
  meeting new concerns.
• In 1974, Supreme Court tightened rules on
  these suits for federal courts, though many
  state courts remain accessible.
 The Supreme Court in Action 1
• Oral arguments by lawyers after briefs submitted
  – Each side has one half-hour, but justices can interrupt
    with questions.
  – Solicitor general
     • Decides what cases the government will appeal from lower
     • Approves every case presented to the Supreme Court
  – Amicus curiae (i.e. ―friend of the Court‖) briefs
    submitted if both parties agree or Supreme Court
    grants permission.
  – Other influences on the justices include law journals.
The Supreme Court in Action 2
 – Conference procedures
   • Role of chief justice: speaking first, voting last
   • Selection of opinion writer
      – Chief if on majority
   • Four kinds of court opinions
      – Per curiam: brief and unsigned
      – Opinion of the court: majority opinion
      – Concurring opinion: agree with the ruling of the majority
        opinion, but modify the supportive reasoning
      – Dissenting opinion: minority opinion
    The Power of the Federal Courts
•   Power to make policy
•   Measures of power
•   Views of judicial activism
•   Legislation and the courts
       Power to Make Policy
• By interpretation of the Constitution or law
• By extending the reach of existing law
• By designing remedies that involve judges
  acting in administrative or legal ways
          Measures of Power
• Number of laws declared unconstitutional (over
• Number of prior cases overturned; not following
  stare decisis (over 260 eases since 1810)
• Extent to which judges will handle cases once
  left to the legislature (―political questions‖)
• Kinds of remedies imposed; judges may go
  beyond what is narrowly required
• Basis for sweeping orders can come either from
  the Constitution or from court interpretation of
  federal laws.
    Views of Judicial Activism 1
• Supporters
   – Courts should correct injustices when other branches
     or state governments refuse to do so.
   – Courts are the last resort for those without the power
     or influence to gain new laws.
• Critics
   – Judges lack expertise in designing and managing
     complex institutions.
   – Initiatives require balancing policy priorities and
     allocating public revenues.
   – Courts are not accountable because judges are not
   Views of Judicial Activism 2
• Possible reasons for activism
  – Adversary culture, emphasizing individual
    rights and suspicious of government power
  – Easier to get standing in courts
    Legislation and the Courts
• Laws and the Constitution are filled with
  vague language, giving courts
  opportunities to design remedies.
• Federal government is increasingly on the
  defensive in court cases; laws induce
  court challenges.
• Attitudes of federal judges affect their
  decisions when the law- gives them
        Checks on Judicial Power
•   Reliance on others
•   Congress and the courts
•   Public opinion and the courts
•   Reasons for increased activism
          Reliance on Others
• Courts rely on others to implement their
  – ―Mr. Marshall has made his decision, now let
    him enforce it.‖
     • President Jackson’s reaction to Supreme Court
       decision favoring the Seminole Indians.
     • The ―trail of tears‖ proceeded.
• If the decision is not highly visible, some
  may choose to ignore it.
       Congress and the Courts
• Confirmation and impeachment proceedings
  gradually alter composition of courts, though
  impeachment is an extraordinary and unusual
• Changing the number of judges, giving president
  more or less appointment opportunities
• Supreme Court decisions can be undone by
  –   Revising legislation
  –   Amending the Constitution
  –   Altering jurisdiction of the Court
  –   Restricting Court remedies
 Public Opinion and the Courts
• Defying public opinion frontally may be
  dangerous to the legitimacy of the
  Supreme Court, especially elite opinion.
• Opinion in realigning eras may energize
• Public confidence in the Supreme Court
  since 1966 has varied with popular
  support for the government, generally.
   Reasons for Increased Judicial
• Government does more and courts
  interpret the laws.
• Activist ethos of judges is now more widely
The End!

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